Matter of Moreno v New York City Dept. of Correction

Matter of Moreno v New York City Dept. of Correction 2008 NY Slip Op 00567 [47 AD3d 545] January 29, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

In the Matter of John Vera Moreno, Appellant,
v
New York City Department of Correction, Respondent.

—[*1] John Vera Moreno, appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York City (Suzanne K. Colt of counsel), for respondent.

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered May 24, 2006, which denied petitioner's application pursuant to CPLR article 78 challenging respondent's constructive denial of his Freedom of Information Law request for documents, unanimously affirmed, without costs.

Petitioner's challenge to respondent's failure to respond to requests for documents compiled in his criminal case by a special master appointed by the court was properly rejected in light of the sworn statement by respondent's counsel that the special master was not employed by respondent and that no such documents were in its possession. The Public Officers Law is not to be "construed to require any entity to prepare any record not possessed or maintained by such entity" (Public Officers Law § 89 [3] [a]). Furthermore, inasmuch as petitioner has not "substantially prevailed" herein, he is not entitled to an award of counsel fees (Public Officers Law § 89 [4] [c]; see Matter of Beechwood Restorative Care Ctr. v Signor, 5 NY3d 435, 441 [2005]).

We have considered petitioner's remaining arguments and find them unavailing. Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and Acosta, JJ.